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*Special thanks to Porter Wright summer law clerk, Diego De La Vega, for his assistance with this post.

On June 1, 2023, the Supreme Court of the United States issued a decision some have deemed a blow to the right to strike. An 8-1 decision, Glacier Northwest v. International Brotherhood of Teamsters Local Union No. 174 crossed ideological lines, as both conservative and liberal members of the Supreme Court either joined the majority opinion or concurred.…

Continue Reading Shot through the heart: Did SCOTUS give strikes a bad name?

A recent National Labor Relations Board decision is a reminder that consistency is an important factor in determining whether an employer has committed an unfair labor practice. In the case of two Kroger subsidiaries, the NLRB held that the National Labor Relations Act protects an employee’s right to wear buttons and masks in support of Black Lives Matter.…

Continue Reading Consistency matters: When the employer speaks, the employees may answer

In a decision issued Feb. 21, 2023, the National Labor Relations Board (NLRB) set a new precedent regarding confidentiality provisions. The McLaren Macomb case involved furloughed employees that were offered a severance agreement containing non-disparagement language that prohibited them from making negative statements about the employer. The agreement also contained a confidentiality provision that prohibited the employees from discussing the terms of the agreement itself.…

Continue Reading NLRB targets confidentiality provisions in severance agreements

How Constellium should inform employers’ policies and practices 

Assume an employee writes the words “whore board” on company overtime sign-up sheets. Serious misconduct, right? In fact, the employer faced with this situation terminated the employee for offensive conduct.

In Constellium Rolled Products Ravenswood, LLC v. NLRB, the U.S. Court of Appeals for the District of Columbia agreed with a National Labor Relations Board (NLRB) decision finding the termination was unlawful. The case illustrates that National Labor Relations Act protections sometimes can trump an employer’s right to regulate potentially offensive language at work.…

Continue Reading When it comes to employee discipline, consistency is key

The United States Court of Appeals for the Third Circuit recently issued an opinion that reversed a decision by the National Labor Relations Board about whether a comment by a management representative was a threat to workers or a mere joke. The NLRB decision sheds interesting light on how remarks, such as this specific employer’s tweet, meant in jest can backfire. Fortunately for this employer, on appeal the Third Circuit “got the joke.”
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Continue Reading Third Circuit decides employer’s tweet was comedic, not coercive

Since the presidential inauguration, many employers have been wondering what changes President Joe Biden’s administration will make in the world of labor and employment law. This blog post summarizes a few key changes the Biden administration has already made, as well as a few changes the administration will likely make in the coming months.
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Continue Reading Biden administration expected to make major changes to labor and employment landscape

Continuing a trend towards reversal of case precedent, the NLRB has issued two decisions important to companies with union contracts. In Valley Hospital Medical Center, the Board considered whether an employer has the right to stop making dues deductions from employee paychecks after a collective bargaining agreement with the union expires. Dues deductions in collective bargaining agreements are common. Unions bargain aggressively for them because these provisions require the employer to automatically deduct union dues from employee paychecks and submit them directly to the union.
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Continue Reading NLRB shift on two important issues for union companies

The National Labor Relations Board (NLRB) governs certain rights of workers in union and non-union workplaces. NLRB cases impact such things as employee rights to complain about working conditions on behalf of oneself and others and the right to communicate to co-workers about interest in unionization. As a result, trends in NLRB decisions are important to all companies, union and non-union.
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Continue Reading Active NLRB is reversing many trends; union and non-union companies need to be aware

The National Labor Relations Board has issued a final rule governing joint-employer status under the National Labor Relations Act. This rule, published in the Federal Register on February 26, 2020, will take effect in late April 2020.

To be a joint employer under the final rule, a business must possess and exercise substantial direct and immediate control over one or more essential terms and conditions of employment of another employer’s employees.…

Continue Reading The new NLRB joint-employer rule

The National Labor Relations Board (NLRB or Board) invited interested parties to submit feedback about when an employee’s offensive or inappropriate workplace comments should lose the protection of the National Labor Relations Act (NLRA). Specifically, the NLRB is inviting employers and other parties to submit briefing about whether it should reconsider its standards for determining whether Section 7 of the NLRA protects employees who make “profane outbursts and offensive statements of a racial or sexual nature…during the course of otherwise protected activity.” By way of background, Section 7 of the NLRA gives employees the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” That can include raising work-related disputes or complaints. This right extends to all non-management employees, not just those represented by a union. But what if the employee raising specomplaints uses obscene or otherwise offensive language directed at a supervisor? In some NLRB cases, employee outbursts that have included offensive language have been shielded from punishment by the employer because the language was considered a part of protected speech.
Continue Reading NLRB invites businesses to provide feedback on when an employee’s offensive comments should lose the protection of federal labor law